TMI Blog2023 (9) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... n held and relied upon by the Hon ble Supreme Court in V. Senthil Balaji [ 2023 (8) TMI 410 - SUPREME COURT] that the decision of a court cannot be read like a statute out of context and in ignorance of the requisite provisions. The question is that whether this meaning as given in Black Laws Dictionary has to be taken literally in the present case. The service of the pleadings in a civil case are entirely different in nature and the law has to be interpreted as a whole and it cannot be taken out of context. In the present case, we are dealing with a situation where the arrestee is accused of a serious offence under PMLA. Any sensitive information disclosed prematurely in such cases may hamper the case of the prosecution/investigating agency. The orders passed by learned Special Judge on 28.06.2023 whereby he found sufficient material on the record and recorded a finding that the investigating agency has complied with the provisions of law while arresting the applicant accused this judgement rather favours the ED. There is no violation of Fundamental Rights of the petitioner. There is nothing or the record to suggest that petitioner has been denied right to consult and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order fixing 31.08.2023 as the deadline for completing all process of due diligence and submission of the term sheet of interim finance within two weeks thereafter before the tribunal after completing all the formalities. In the present petition the petitioner has raised following question of law: a) Whether grounds of arrest need to be orally informed or given in writing? b) Whether the petitioner s fundamental rights have been violated as he has not been informed/served the grounds of his arrest (that are in writing) and thereby also denying him the right to consult and be defended by his legal practitioner? c) Whether the fundamental right of the petitioner guaranteed to him under Art. 21 of the Constitution of India has been violated by depriving him of his life and personal liberty subjecting him to an illegal arrest by setting the criminal law in motion contrary to the procedure established by law? d) Whether the Petitioner s arrest is contrary to s. 19 of the Prevention of Money Laundering Act, 2002 thereby violating the Petitioner s fundamental right under Art. 21 read with Art. 14 of the Constitution of India? 5. That the petitioner has submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , AIR 1953 SC 10, wherein it was inter alia held that a person to be arrested is to be informed of the grounds for his arrest before he is actually arrested. 9. The petitioner has also relied upon Madhu Limaye and Ors., 1969(1) SCC 292. The petitioner has submitted that the grounds of arrest that admittedly are in writing and ran into several pages have to be informed to the petitioner in writing and non-furnishing of the same violates the fundamental rights of the petitioner under Art. 20(1) of the Constitution of India. 10. The petitioner has submitted that his fundamental right under Article 21 has also been violated by subjecting him to an illegal arrest by setting the criminal law in motion contrary to the procedure established by law. 11. The petitioner has also challenged the provisional attachment of the properties by the ED. 12. After hearing the parties, thus court was of the view that there are important questions of law which require consideration and thus, notice was issued. 13. In response to this, ED has filed the counter affidavit and submitted that there has been a sufficient compliance with Section 19 of the PMLA and Article 22(1) of Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014) 13 SCC 436, State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745 : (2019) 1 SCC (Cri) 386 : 2018 SCC OnLine SC, Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266, State v. H. Nilofer Nisha, (2020) 14 SCC 161. 20. It is submitted that informing grounds of arrest is sufficient compliance with section 19 of the PMLA and there is no legal requirement of supplying a copy of grounds of arrest. It was submitted that in the remand order dated 28.06.2023 which was passed by learned Special Judge specifically noted that there was nothing to suggest from the case file produced by IO that the arrest of the accused has been effected in violation of provision of Section 19 of the PMLA or that the same was otherwise illegal. Learned Special Judge has specifically mentioned that IO has not only recorded the reasons for his belief about accused s being guilty of the offence of money laundering under Section 3 of the PMLA, but the said grounds are also found to have been informed to the accused. The ED has placed reliance upon Moin Akhtar Qureshi vs. UOI 2017 SCC OnLine Del 12108 and Chhagan Chandrakant Bhujbal vs. Union of India 2016 SCC OnLine Bom 9938. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with law. It would be open to the parties to pursue all (other) contentions in those proceedings, except the question of validity and interpretation of the concerned provision(s) already dealt with in this judgment. The transferred cases are disposed of accordingly. 24. ED has also relied upon the debates of Constituent Assembly wherein the suggestions to quantify the time-period to inform the grounds of arrest was found to be unnecessary and it was observed by Dr. B.R. Ambedkar that in any case informing such grounds of arrest cannot be later than 24 hours when the grounds for arrest and further custody are required to be informed to the Magistrate itself in the presence of the accused. It is submitted that it is well settled that Constituent Assembly Debates are the best aid for interpreting the provisions of the Constitution a reference has been made to S .R. Chaudhari v. State of Punjab On. (2001) 7 SCC 126 (para 33) Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter) (2002) 8 SCC 237. 25. ED has further submitted that that even Article 22(1) provides that No person who is arrested shall be detained in custody without being informed, as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation of grounds of arrest was given in writing. It is submitted that it is undisputed that the petitioner had read and acknowledged the written grounds of arrest and also signed the same in his own handwriting. 31. Reliance has been placed upon Khimji Raja Harijan v. District Magistrate, 1987 SCC OnLine Guj 98, wherein it was held that oral intimation to the members of the household of the order of detention and the place of detention would substantially comply with the directions by the Supreme Court and would not vitiate the order of continued detention. ED has also placed reliance upon Pranab Chatterjee v. State of Bihar, (1970) 3 SCC 926. 32. Moreover, the ED submits that there will be no presumption that the particulars of the offence of the grounds for which the applicant was arrested were not conveyed to him by the person who arrested him, or by police and this fact is to be proved positively by the person who alleges non-compliance with these provisions. Reliance has been placed upon Vimal Kumar Sharma vs. State of U.P. and Ors. MANU/UP/0602/1995, Sher Bahadur Singh and Ors. vs. State of U.P. and Ors. (25.05.1992 - ALLHC) : MANU/UP/0263/1992. 33. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed senior counsel submitted that Vijay Madanlal Choudhary judgment is oriented towards elaborating/ examining validity of law as it was a batch of matters challenging validity of law, whereas V. Senthil Balaji is fact-based matter where an individual was concerned and there is no irreconcilable conflict between the two. 40. Dr. Abhishek Manu Singhvi, learned senior counsel submitted that V. Senthil Balaji has in fact aided in the advancement of law taking the law further from Vijay Madanlal Choudhary. Dr. Abhishek Manu Singhvi, learned senior counsel submitted that Vijay Madanlal Choudhary also does not state that grounds of arrests need not be supplied, neither does it say that they be furnished well after arrest. Learned senior counsel submitted that the judgment in Vijay Madanlal Choudhary arose out of batch of matters examining constitutional validity of law and was aimed at clarifying the law, whereas V. Senthil Balaji is more an individual based matter where the law laid down in Vijay Madanlal Choudhary were considered in the particular facts and circumstances of the case. 41. Dr. Abhishek Manu Singhvi, learned senior counsel relied on Vijay Madanlal Choudhary to underl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scretionary power to check arbitrariness and referred to Para 325 wherein it was held as under: The safeguards provided in the 2002 Act and the preconditions to be fulfilled by the authorised officer before effecting arrest, as contained in Section 19 of the 2002 Act, are equally stringent and of higher standard. Those safeguards ensure that the authorised officers do not act arbitrarily, but make them accountable for their judgment about the necessity to arrest any person as being involved in the commission of offence of money-laundering even before filing of the complaint before the Special Court under Section 44(1)(b) of the 2002 Act in that regard. If the action of the authorised officer is found to be vexatious, he can be proceeded with and inflicted with punishment specified under Section 62 of the 2002 Act. The safeguards to be adhered to by the jurisdictional police officer before effecting arrest as stipulated in the 1973 Code, are certainly not comparable. Suffice it to observe that this power has been given to the high-ranking officials with further conditions to ensure that there is objectivity and their own accountability in resorting to arrest of a person even be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the legality of the arrest is very wide. 46. Learned senior counsel has placed reliance upon V. Senthil Balaji and submitted that the facts were different and the grounds of arrest were provided but were denied by accused. Hence, they were served to the family of the accused. Learned senior counsel has placed reliance upon V. Senthil Balaji to bolster the submission that officer should supply / serve reasons and non-compliance would vitiate the arrest. 47. Dr. Abhishek Manu Singhvi, learned senior counsel submitted that V. Senthil Balaji is completely in sync with Vijay Madanlal Choudhary and the law laid down has merely been followed and advanced. Learned senior counsel has invited the attention of the court to the rules and has placed reliance upon the Prevention of Money Laundering (the forms and the manner of forwarding a copy of order of arrest of a person along with the material to the adjudicating authority. Hence its period of retention) Rules 2005. Learned senior counsel submitted that Rule 2(g) provides which is as under: g) material means any information or material in the possession of the Director or Deputy Director or Assistant Director or any authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso submitted that the matter involving personal liberty requires a different perspective by the court. Learned senior counsel has submitted that if a liberal approach is not taken all safeguards will be negated. Learned senior counsel has submitted it cannot be comprehended why ED is shying away from giving the grounds of arrest to the petitioner. 54. Zoheb Hossain, learned special counsel for the ED submits that there has been sufficient compliance with Section 19 of the PMLA and Article 22(1) of the Indian Constitution. He submits that it was based on 26 FIRs, the Enforcement Directorate initiated an investigation against the Petitioner and M/s Supertech Limited, recording ECIR No. ECIR/ 21/STF/2021 on September 9, 2021. He further submits that throughout the investigation, the ED issued 12 summons under Section 50 PMLA to the Petitioner, spanning from November 17, 2021, to March 29, 2023. The learned Counsel submits that there is substantial evidence on record indicating that the was involved in the offense of money laundering as defined in Section 3 of the PMLA 2002 and that he knowingly participated in activities connected to the proceeds of crime, projecting it as clean p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial orders passed by the Judicial Magistrate as well as the Special Court, Gurugram, remanding the accused to custody. If we go purely by the law laid down by this Court with regard to exercise of jurisdiction in respect of habeas corpus petition, the High Court was not justified in entertaining the petition and passing the order. 57. That reliance in this regard is also placed on the decision of the Hon ble Supreme Court in the case of Kanu Sanyal v. Distt. Magistrate, Darjeeling, (1974) 4 SCC 141 (Para 4), State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745 (Para 10), Basanta Chandra Ghose v. King Emperor, 1945 SCC OnLine FC 3, Naranjan Singh Nathawan v. State of Punjab, (1952) 1 SCC 118 : 1952 SCC OnLine SC 4 (Para 10), Talib Hussain v. State of J K, (1971) 3 SCC 118 at page 121, Col. B. Ramachandra Rao (Dr) v. State of Orissa, (1972) 3 SCC 256, Sanjay Dutt v. State through CBI, Bombay (II), (1994) 5 SCC 410, Bhagwan Singh v. State of Rajasthan, 2005 SCC OnLine Raj 861 : (2006) 1 RLW 790, Saurabh Kumar v. Jailor, Koneila Jail, (2014) 13 SCC 436, State v. H. Nilofer Nisha, (2020) 14 SCC 161. 58. It is submitted that the legislative scheme under the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajbhushan Omprakash Dixit vs. Union of India is misplaced as the same is merely an interim order; which do not have precedental value. In this regard, reliance is placed on the decision of the Hon ble Supreme Court in the case of Sundeep Kumar Bafna vs. State of Maharashtra (2014) 16 SCC 62. Additionally, it is submitted that the Apex court in Vijay Madanlal decided the issue by stating So long as the person has been informed about grounds of his arrest that is sufficient compliance of mandate of Article 22(1) of the Constitution. Reliance in the regard to show that quantifying the time period to inform the grounds of arrest was found to be unnecessary is also placed on the Constituent Assembly Debates and S.R. Chaudhari v. State of Punjab Ors. (2001) 7 SCC 126 (para 33) Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter), (2002) 8 SCC 237 (para 15 , 16 ,18), Madhu Limaye, (1969) 1 SCC 292, Viscount Simon in Christie v. Leachinsky, (1947) 1 All ER 567. (Para 11, at p.1144 of Cri LJ), State of Punjab v. Baldev Singh, (1999) 6 SCC 172. 62. The learned special counsel for the ED further submitted that the reliance placed on V. Senthil Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial placed on record is sufficient to persuade this Hon ble Court that no satisfaction, as required u/s 45 of the PMLA, can be reached. 66. In order to respond to the questions of law raised by the petitioner the court is required to first prefer to the relevant provisions of law Section 19 of the PMLA provides as under: 19. Power to arrest. ( 1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrested person shall be within 24 hours be taken to the Special Court, Judicial Magistrate or MM as the case may be. Thus, the conjoint reading of Rule 2, Section 19(1) and Section 19(2) makes it clear that before affecting the arrest of an accused the following prerequisites are essential: a. There must be material in the possession of the concerned officer indicating the reason to believe, which are recorded in writing, that any person has been guilty of an offence. b. If the officer proceeds to arrest; the grounds for such arrest shall be informed to him, as soon as may be . 69. Section 19(2) re-emphasizes that the material in his possession as defined under Section 2(g) has to be referred to the adjudicating authority. 70. Rule 3 of the 2005 rules also provides an additional safeguard in the form of the arresting officer having to prepare an index of the copy of the order (which has been defined under Section 2(h) so as to include grounds for such arrest under Section 19(1) and the material as defined under Rule 2(g)), and sign each page of such index of the copy of the order. 71. Rule(7) also provides that the arresting officer shall maintain register and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest and if the same are not supplied in writing to the accused, the mandate of Section 19(1) is not complied with and thus, proceedings stands vitiated. 74. Per contra the case of the ED is that the mandate of the law has to be read as provided by the statute. The case of the ED is that the statute provides that the grounds of arrest have to be informed to the arrestee as soon as it may be possible, and it is not necessary that copy of such grounds of arrest have to be served to the arrestee contemporaneously at the time of the arrest. In this regard, the Hon ble Supreme Court in Vijay Madanlal Choudhary made the following observation: 458. The next issue is: whether it is necessary to furnish copy of ECIR to the person concerned apprehending arrest or at least after his arrest? Section 19(1) of the 2002 Act postulates that after arrest, as soon as may be, the person should be informed about the grounds for such arrest. This stipulation is compliant with the mandate of Article 22 (1) of the Constitution. Being a special legislation and considering the complexity of the inquiry/investigation both for the purposes of initiating civil action as well as prosecution, non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects of the offence in question. In several cases, even the names of persons actually involved in the commission of offence are not mentioned in the FIR and described as unknown accused. Even, the particulars as unfolded are not fully recorded in the FIR. Despite that, the accused named in any ordinary offence is able to apply for anticipatory bail or regular bail, in which proceeding, the police papers are normally perused by the concerned Court. On the same analogy, the argument of prejudice pressed into service by the petitioners for non-supply of ECIR deserves to be answered against the petitioners. For, the arrested person for offence of money-laundering is contemporaneously informed about the grounds of his arrest; and when produced before the Special Court, it is open to the Special Court to call upon the representative of ED to produce relevant record concerning the case of the accused before him and look into the same for answering the need for his continued detention. Taking any view of the matter, therefore, the argument under consideration does not take the matter any further. 75. The reading of Para 458 and 459 which has been relied upon by both the parties makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d: One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament. And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said: There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case. 5. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) The outer limit of 15 days of custody to the police from the date of arrest has worked itself out therefore no court can extend it under any circumstances. d) The High Court has committed an error in not appreciating the legislative scheme and the time line in the light of Article 22 of Constitution of India. 79. Thus, apparently the interpretation of Section 19 as held in Vijay Madanlal Choudhary was not specifically raised before in V. Senthil Balaji case. However, the Apex Court in V. Senthil Balaji, while discussing the provision of PMLA and in particular Section 19, specifically held that an authorised officer has to assess and evaluate the material in his possession and through such material he is expected to form a reason to believe that a person has been guilty of a offence under the PMLA. Thereafter, he is at liberty to arrest by performing his mandatory duty of recording the reasons. It was further inter alia held that the said exercise has to be followed by way of information of the grounds of arrest being served on the arrestee. The Apex Court said that any non-compliance of the Section 19(1) of PMLA would vitiate the arrest itself. The Hon ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack to the common law. In this regard reference can be made to the division bench judgment of this court in Moin Akhtar Qureshi vs. UOI which held as under: 90. Thus, we agree with Mr. Mahajan that, firstly, there was no illegality in the initial arrest of the petitioner. There was sufficient compliance of Article22(1) of the Constitution of India, as the petitioner stood informed of the grounds of his arrest when he was permitted to read the same. He was also informed of the same vide the remand application under Section 167 CrPC read with Section 65 of the PMLA moved on 26.08.2017. We also agree with the submission of Mr. Mahajan that a writ of habeas corpus does not lie in the facts of the present case, since the petitioner was placed initially in ED custody remand, and thereafter in judicial custody by orders passed by a competent court with due application of mind. 82. It is also necessary to refer to Chhagan Chandrakant Bhujbal vs. UOI 2016 SCC Online Bombay 9338 . The Supreme Court in Vijay Madanlal Choudhary has also referred to that has also inter alia held that so long as the person has been informed about the grounds of his arrest that is sufficient comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own on the point in question, the judgment is respectfully distinguished on the facts and circumstances of the case. The judgment cited by the learned senior counsel for the petitioner in Madhu Limaye and Ors., 1969(1) SCC 292 is to the affect that the petitioners in that case were released on the ground that the show cause notices issued satisfied the constitutional requirement. However, it is pertinent to mention here that in Madhu Limaye the Apex Court inter alia held that once it is shown that the arrest made by the police officer were illegal, it was necessary for the state to establish that at the stage of remand, the magistrate directed detention in jail custody after applying his mind to all relevant matters. 86. I consider that in view of the orders passed by learned Special Judge on 28.06.2023 whereby he found sufficient material on the record and recorded a finding that the investigating agency has complied with the provisions of law while arresting the applicant accused this judgement rather favours the ED. 87. As far as the contention of the learned senior counsel for the petitioner to release the petitioner on interim bail or to release him or to pass an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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